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R v Flattery (1877) 2 QBD 410

Criminal – Sexual Assault –Consent obtained through fraud - Pretence of Surgical Operation


The defendant, John Flattery (JF) posed as a medical doctor and surgeon. The complainant, a young woman aged 19, consulted JF with respect to an illness she was suffering, accompanied by her mother. JF advised that surgery was required. Under the pretence of performing surgery, JF had sexual intercourse with the complainant. The crown brought proceedings against JF under Statute 13 Edw. 1, c. 34, charging him with rape.


The issue was whether submission to sexual intercourse amounted to consent. The complainant had submitted to JF’s advances, but only on the belief that he was treating her for her seizures. Submission did not amount to consent by law where that consent had been obtained by fraud. There was no consent given to JF to have intercourse with the complainant, only to treat her medically.


The complainant submitted to the intercourse on a false pretence and was therefore unlawful. Mellor J. relied on the case of R v Case 19 L. J. (Mag. C.) 174, agreeing with and quoting Wilde, C.J. that,

“she consented to one thing, he did another materially different, on which she had been prevented by his fraud from exercising her judgment and will.” (paragraph 414)

Mellor referred to the Statute 13 Edw. 1, c. 34 which defined rape to be sexual intercourse that had not been “assented [to] before nor after”. Mellor concluded that submission may be considered as consent, but not where consent was only given for some other action or thing and not sexual intercourse. The appeal was dismissed and the conviction stayed.

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